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We are often asked, “How do I avoid a claim against my Estate?”. The short answer is that there is no way to avoid a claim entirely as the rights of disappointed beneficiaries to allege that:

• You did not make adequate provision for them; or
• You did not have capacity to change your Will to disinherit them; or
• You were subjected to undue influence in changing your Will,

are all well entrenched in statute, common law and equity.

Here are some suggestions about minimising the risk of “Will Litigation” as it is sometimes called:

1.       Keep Promises: If you have promised someone (even verbally) that they would receive a benefit under your Will abide by that promise or have very good lawyer assisted documentation as to why you didn’t follow through.

2.       Adequately provide: Wisely and justly decide about adequate provision for all those who might reasonably expect to benefit from your estate. Again, if you are considering not providing for someone who might have this expectation, (even with good reason), we recommend that you take further legal advice.

3.       Hold Property in other entities: Consider holding property in other “entities” that continue to have life after your death (e.g. companies and trusts). This should be done with care and professional estate planning advice that deals with the succession of control of these entities.  

4.       Hold Property as joint tenants: Consider holding property as joint tenants so that it passes to the survivor by way of “survivorship” (without forming part of your estate) rather than beneficial entitlement under your Will.

5.       Give away property: Consider giving away property during your lifetime so that it will not form part of your estate on your death.